Sutton school project in turmoil; contractor blamed for delays

SUTTON — The $57.6 million middle/high school construction project is roiled by turmoil as town officials determine whether to terminate the agreement with the general contractor.

They claim that the contractor's failure to pay its subcontractors for work and misleading claims by the firm have led to substantial delays.

Sutton students had to start the school year in makeshift quarters rented from a church because the new middle school, which was supposed to temporarily house Grades 9 through 12, was several months behind schedule. The high school students are now in the new building, while middle school students occupy portable classrooms, although officials say a significant punch list remains.

In early September, the town placed a claim on the contractor's performance bond with Western Surety Co. — essentially insurance that the project will be completed as promised — and local officials expect to receive a report by next week with recommendations on how to proceed.

Options include having the surety company arrange payment for the contractor, TLT Construction Corp. of Wakefield, to complete the work; have Western Surety arrange for a new general contractor; or pay Sutton directly to rebid the project and complete the work.

TLT representatives did not return a telephone call for comment.

Town Administrator James A. Smith said TLT has not been paid since May because it hasn't produced proof that its subcontractors have been paid, contributing to delays.

The outstanding payment amounts to TLT total well over $1 million, he said.

TLT had been paid $25 million of its total $42 million contract award as of May 31.

Also, Sutton representatives began on April 1 assessing liquidated damages of $2,500 a day, or $75,000 a month, on TLT for not completing its promised work.

Critics blame the forgiving prequalification process set by the state for awarding public building contracts as contributing to the current situation.

TLT, which was awarded the contract in May 2011 after submitting the lowest bid among 13 prequalified applicants, was not recertified by the state Division of Capital Asset Management and Maintenance in July after Sutton and other towns gave the company a failing preliminary score for performance.

The construction company cannot apply for recertification, which is required to bid on a public project costing at least $100,000, for at least a year.

The denial of certification notice from the Office of the Inspector General read in part: "TLT had willfully failed to provide accurate information regarding the volume of direct payment claims made by sub-contractors and thereby had provided DCAMM with materially false information, had faced excessive direct payment demands, had multiple past projects with failing scores, and has multiple failing preliminary scores on recently completed projects (including projects in Foxboro, Lexington, Sutton and Westwood). … Earlier this year TLT was terminated by the state of New Hampshire in connection with a contract for the construction of a National Guard facility."

Wendy M. Mead, chairwoman of the School Building Committee, said TLT led Sutton representatives to believe, in the bidding process, that all legal proceedings against the firm had been resolved.

"Had we been given that information at the time, they never would have been prequalified," she said.

Selectman Richard Hersom, who said he was outraged by TLT's nonperformance, said, "Once you prequalify a general contractor, if they are the low bidder it pretty much takes an act of God to not give them the contract."

He added: "I will continue to work diligently with my state legislative contacts that they (TLT) will be penalized so they never bid to do a public project again. I never want to see another municipality suffer through what Sutton went through."

Immediately after the contract was awarded in 2011, the second-lowest bidder, Agostini/Bacon Construction Co., challenged the award, claiming that TLT failed to list all legal or administrative proceedings pending against it or concluded adversely within the past five years.

TLT's lawyer notified Sutton's lawyer that the state prequalification standard didn't require the listing of matters that had been voluntarily settled, which was what occurred among the eight claims cited in the bid protest.

Agostini/Bacon Construction ultimately withdrew its bid protest.

Not included with the challenge was a $6.2 million settlement reached between TLT and Wachusett Regional School District in Holden in December 2008.

TLT sued the district for $14.8 million after Wachusett officials stopped paying TLT in October 2007 for renovation of the regional high school because of delays and other construction problems. According to a report in the Telegram & Gazette, TLT said it did not have money to pay its subcontractors, so the work couldn't get done.

The district agreed in mediation to settle so the project could be completed by TLT, a subcontractor or another vendor.

"This has become a recurring theme with TLT," said Jonathan Winikur, project manager for Sutton and a principal at Strategic Business Solutions.

Mr. Winikur said it became clear in November 2012 that the target date of completing the new middle school by January 2013 would not be met.

The School Building Committee decided in December that terminating the contract and rebidding the project then would be too disruptive, so it rescheduled the project's phases so the middle school would be ready to be occupied by April and high school classes could be moved in over spring break.

"We felt strongly that even though TLT kept saying they were going to meet the date, they weren't going to meet that date," Mr. Winikur said. "Obviously, TLT wasn't able to deliver on any of their promises."

Subsequent deadlines also went unmet. The middle school building wasn't ready to be occupied until September, a few weeks after the start of the current school year.

Dan Collins, a spokesman for the Massachusetts School Building Authority, which will reimburse Sutton for part of the project, said in an email: "We continue to monitor the project closely and we look forward to continued collaboration with the district to better understand the situation as it progresses."

Despite the construction debacle, Superintendent of Schools Theodore F. Friend said the students are thriving in the new campus, even in its uncompleted stage.

"The kids love it. To go from what they were used to, to the new building, it's a different world," Mr. Friend said.

"My wish is that for the winter concert, we're able to open the new auditorium. I have no idea whether they can make that date, but I'm hoping."

Contact Susan Spencer at susan.spencer@telegram.com. Follow her on Twitter @SusanSpencerTG

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